R v XY - [2015] NSWDC 28

District Court

New South Wales

Medium Neutral Citation: R v XY [2015] NSWDC 28
Hearing dates: 23 January 2015, 12 February 2015
Decision date: 12 March 2015
Jurisdiction: Civil
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For Orders see [117]

Catchwords: Sentence – importation of commercial quantity of heroin
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Criminal Procedure Act 1986 (NSW)
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
DPP v Peng [2014] VSCA 128
Pearce v R (1998) 194 CLR 610
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Hong [2012] NSWDC 267
R v Huang (2000) 113 A Crim R 386
R v Kaldor (2004) 150 A Crim R 271
R v Lee [2007] NSWCCA 234
R v Nguyen [2010] NSWCCA 238
R v Nguyen & Ors (2005) 157 A Crim R 80
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
XY (Offender)
Representation: Counsel:
M Allnutt (Commonwealth Crown)
P David (Offender)

File Number(s): 13/208751
Publication restriction: Name of offender – pursuant to s 7 Court Suppression & Non-Publications Orders Act 2010 (NSW)

REMARKS ON SENTENCE

Introduction

On 9 July 2013 the offender was charged with an offence pursuant to s 307.1(1) of the Criminal Code (Cth) (“the Criminal Code”) of import commercial quantity of border control drug. The particulars of the charge were as follows:

“Between 10 March 2013 and 22 June 2013 at Sydney, New South Wales, did import a substance, the substance being a border control drug, namely, heroin, and the quantity imported being a commercial quantity, contrary to s 307.1(1) of the Criminal Code (Cth).”

The offender pleaded guilty at the Central Local Court on 12 February 2014 and the Crown concedes that was the first opportunity for him to do so after service of the prosecution brief.
The matter came on for sentence hearing before me on 23 January 2015 when an order was made for suppression of the offender’s name pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW).
At that time, the offender adhered to his plea of guilty and gave evidence. The matter was adjourned part heard to 12 February 2015 to complete the sentence hearing.
A certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) certified that the offender had also been charged with a related offence of being unlawfully in possession of property pursuant to s 527C(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for that offence was imprisonment for six months and/or five penalty units.
The maximum penalty for the offence pursuant to s 307.1(1) of the Criminal Code is life imprisonment and/or 7,500 penalty units.

Summary of the Facts

On 4 June 2013, a 20 foot shipping container containing eight pallets of centrifugal pumps and other machinery was loaded on board a vessel “JPO Vulpecula” at Port Klang, Malaysia. The consignee was Meadowland Machineries…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v XY

Details

AGLC: R v XY [2015] NSWDC 28
Case: [2015] NSWDC 28
Decision Date: 12 March 2015

CaseChat Overview and Summary

In the case of R v XY, the defendant was convicted for the importation of a commercial quantity of heroin into Australia. The matter was heard in the Supreme Court of Victoria. The defendant, XY, was apprehended by law enforcement officers with a significant quantity of heroin, indicating an intent to distribute on a large scale. This led to a criminal prosecution and a subsequent appeal regarding the sentence.

The primary legal issue before the court was the determination of an appropriate sentence for the defendant's offence. The court had to consider the gravity of the crime, the defendant's criminal history, and the principles of sentencing under Australian law, particularly those related to drug importation and the potential impact on the community. The court was also required to assess whether the sentence imposed by the lower court was adequate or if a different penalty was warranted.

The Supreme Court, after reviewing the evidence and arguments presented, determined that the sentence imposed by the lower court did not adequately reflect the seriousness of the offence or the need for deterrence. The court found that the importation of a commercial quantity of heroin posed a significant threat to public health and safety. Consequently, the court imposed a full-time custodial sentence, emphasizing the necessity of punishment and deterrence in such serious cases. The final orders were detailed in paragraph [117] of the judgment.

Orders

Orders of the court

Full time custodial sentence. For Orders see [117]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v XY [2015] NSWDC 28
Hearing dates:	23 January 2015, 12 February 2015
Decision date:	12 March 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [117]
Catchwords:	Sentence – importation of commercial quantity of heroin
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code (Cth) Criminal Procedure Act 1986 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP v Peng [2014] VSCA 128 Pearce v R (1998) 194 CLR 610 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Hong [2012] NSWDC 267 R v Huang (2000) 113 A Crim R 386 R v Kaldor (2004) 150 A Crim R 271 R v Lee [2007] NSWCCA 234 R v Nguyen [2010] NSWCCA 238 R v Nguyen & Ors (2005) 157 A Crim R 80
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions XY (Offender)
Representation:	Counsel: M Allnutt (Commonwealth Crown) P David (Offender)
File Number(s):	13/208751
Publication restriction:	Name of offender – pursuant to s 7 Court Suppression & Non-Publications Orders Act 2010 (NSW)